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Correcting Misconceptions About Mediation

March 3, 2016

In response to my post describing the differences between mediation, counseling and therapy, I received three comments on LINKED IN with regard to mediation specifically.

The first two comments were from persons who identify as counselors. The third was from an experienced family lawyer. All three comments are wrong. All three comments represent common misconceptions about mediation. All three comments were provided by professionals who one would expect to understand mediation. They commented:

  1. Mediation is when there seems no resolution to be made between the two and they seek an objective third party to come to an equitable distribution of the issue at hand. They have both agreed that the decision of the mediator will be binding.
  2. Mediation is legal term.
  3. All family law practitioners are mediators who bring to their clients an understanding of the likely outcomes of their claims which are often misconceived. Parties usually follow the advice of their lawyers and it is therefore for the lawyer representatives to mediate between themselves and to advise their clients of a reasonable fair handed outcome for both parties.

Let’s clarify those misconceptions:

Firstly, mediators do not make binding decisions. The essence of mediation is that the final outcome rests with the participants, not the mediator.

In arbitration, an arbitrator does make the final decision and this role has to be agreed upon in advance. An arbitrator is akin to hiring a private judge. The differences between mediation and arbitration are very important and should not be confused.

Both mediators and arbitrators should have some specific training. Depending on where you live, there may be legislation determining under which conditions a person can call themselves either a mediator or arbitrator (or both). In some jurisdictions, the legislation may extend to requiring certain education and/or processes of the service provider. In the province of Ontario, anyone may call themselves a mediator. Only those with specific training and following certain standards can call themselves an arbitrator in Ontario. I have been trained in both mediation and arbitration as well as counseling, therapy and collaborative family law.

Secondly, mediation is not a legal term. Mediation refers only to a dispute resolution process in which a neutral third person helps at least two others in dispute find a mutually agreeable resolution. Assuming a resolution is achieved through the process, the participants on their own can follow the terms of their resolution and carry on.

If a participant has concerns about the follow through of the other and they want to ensure the mediated resolution is binding, then one can seek to have the resolution converted into a legally binding agreement for which a lawyer is then necessary. A lawyer can also just go over the terms of a mediated agreement to assure the agreement makes sense and that it covers the interests of the person agreeing to the resolution. I recommend that persons seeking legal advice on a mediated agreement, seek the advice of a lawyer who is additionally trained in Collaborative Family Law.

Mediated agreements can also be converted into a court order through other processes for enforcement by the courts. Mediation in and of itself though is simply a special kind of dispute resolution process and in fact, is even taught to children/students to help resolve disputes between other children in school.

Thirdly, mediation is not an activity between lawyers. What the lawyer described perfectly well in the comment above is lawyer-assisted negotiation.To be clear, not all lawyers are mediators but all lawyers may and can provide lawyer-assisted negotiation.

In lawyer assisted negotiation, the parties tell the lawyers what is going on from their perspective and what they seek in terms of an outcome. Frequently the negotiations between the lawyers are carried out through correspondence and at times without their client’s knowledge as to the content. Those correspondences may read like blame and demand letters which only serve to ratchet up conflict as the “opposing” party responds in kind. On some occasions a lawyer may choose to give a phone call. Rarely will two lawyers meet face to face to discuss their client’s positions or interests. This approach to negotiation often leads to an escalation of conflict and the threat of or act of litigation.

Lawyer-assisted negotiation is distinguished from mediation. Rather than two lawyers seeking to resolve matters on your behalf, and as mentioned above, in mediation both parties meet with single neutral facilitator where the neutral does not advise on the appropriateness of the agreement and let’s the parties come to their own decisions directly between themselves.

Lawyers can never know the intimate details of your life, relationships and situations. Giving them information and then having them essentially go into battle on your behalf cannot provide for a resolution that addresses the intricacies as the parties themselves know them. Your outcome is at the mercy of the lawyers. Only the parties subject to the dispute and negotiations will ever know the intricacies of their situation and appropriateness of any proposed resolution.

The real benefit of meditation is that it is typically a more peaceful process than litigation, arbitration or lawyer-assisted negotiation and the parties achieve a mutually agreeable outcome. Mutually agreeable outcomes are better followed and longer lasting than outcomes imposed by a court or arbitrator. The reason is because when two people are both agreeable with the outcome, both are more likely to follow it. Interestingly, because the parties are finding their middle ground, neither may love the outcome, yet both may be satisfied with it. This is more often better than a lop-sided outcome imposed by a third party where the dissatisfied party may not abide fully with the terms as ordered or may seek to find a way  to fully undermine the spirit of the agreement and/or have it overturned.

Mediation isn’t for everyone or all situations. If one feels coerced or in danger in the process, then those dispute resolution strategies that account for your personal safety in the process and ability to settle matters non-coercively may be better suited.

In Ontario, Canada, parties who have started a court action to resolve their separation or divorce matters must attend a Mandatory Information Presentation (MIP) to learn about the court process, alternatives to court, the impact of separation/divorce on adults and children and how to manage the psycho-social aspect of the process on self and children. The MIP is co-led with a lawyer and mental health professional. I am on the panel of presenters for the MIP program and have presented this information multiple times over several years.

Know someone who might benefit from this information? Please scroll down and share this article.

I am Gary Direnfeld and I am a social worker. For a full listing of all my peacemaking strategies for resolving parenting disputes, please see my website.

Gary Direnfeld, MSW, RSW

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Gary Direnfeld is a social worker. Courts in Ontario, Canada, consider him an expert in social work, marital and family therapy, child development, parent-child relations and custody and access matters. Gary is the host of the TV reality show, Newlywed, Nearly Dead, parenting columnist for the Hamilton Spectator and author of Marriage Rescue: Overcoming the ten deadly sins in failing relationships. Gary maintains a private practice in Dundas and Georgina Ontario, providing a range of services for people in distress. He speaks at conferences and workshops throughout North America.

If your relationship is faltering, then set it as your priority.

Read: Marriage Rescue: Overcoming ten deadly sins in failing relationships.

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  1. My wife and I had a mediator help us find common ground. We arrived at a resolution and took it to otherr attorneys before signing off. My wife went to a childhood friendx who is an attorney. She returned with a totally different opinion and unrealistic expectations that the mediator pointed out were unfair. Yet hgered we are fighting it out when we had an equitable agreement. How can an attorney say to their client ” the kids might just have to take the hit” and feel they are helping?

    • That is why I always suggest people consult attorneys trained in Collaborative Law. They are trained to understand that mediated aggreements are meant to meet the interests of both persons and they likely have reasons for agreeing to what they did.

  2. Thanks Gary, I agree with your comments on lawyer assisted negotiations. In my area, during court ordered mediation, attorneys will not allow their clients in the same room even when the mediator is merely introducing the mediation process and going over the rules. I can only surmise that they are so frightened that their client might blurt out a concession, whether in the spirit of settlement or possibly a moral rather than legal obligation, that they wan’t to preclude that possibility from happening. I find the settlement terms are very legally driven rather than solution driven.

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  1. Couple Therapy vs Counseling vs Mediation: Difference? | Gary Direnfeld, MSW, RSW

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